Standing Committee A

[Mr. Humfrey Malins in the Chair]

Tobacco Advertising and Promotion Bill

Clause 5 - Advertising: defences

Caroline Spelman: I beg to move amendment No. 26, in page 2, line 36, leave out
`had no reason to suspect'
 and insert 
`could not reasonably have been expected to know'.

Humfrey Malins: With this it will be convenient to take the following amendments: No. 7, in page 2, line 41, leave out
`he could not reasonably have'
 and insert 
`it could not reasonably have been'. 
No. 27, in page 2, line 44, leave out 
`had no reason to suspect' 
and insert 
`could not reasonably have been expected to know'. 
No. 28, in page 3, line 3, leave out 
`had no reason to suspect' 
and insert 
`could not reasonably have been expected to know'. 
No. 29, in page 3, line 3, leave out 
`had no reason to suspect' 
and insert 
`could not reasonably have been expected to know'. 
No. 30, in page 3, line 11, leave out 
had no reason to suspect' 
and insert 
`could not reasonably have been expected to know'. 
No. 35, in clause 8, page 4, line 9, leave out 
`had no reason to suspect' 
and insert 
`could not reasonably have been expected to know'. 
No. 36, in clause 9, page 4, line 34, leave out 
`had no reason to suspect' 
and insert 
`could not reasonably have been expected to know'.

Caroline Spelman: This series of amendments would alter the phrase ``had no reason to suspect'' to ``could not reasonably have been expected to know'', which is a more practical and objective formulation of the same idea. When we debated clause 2 and touched on the defences that might be used, I was pleased that the Minister used exactly the same phrase at column 36 of the Hansard report of our proceedings. My ears pricked up at that reference because such wording is much easier for people to understand and to judge objectively. A third party could take the view that someone could reasonably have been expected to know something, whereas it would be more difficult to prove that someone had reason to suspect something.
 It is difficult to prove the absence of possible suspicion. I am not a lawyer, but those who are will understand that it is important to have a defence that is workable in practice, if the Bill outlines certain offences. Under the law, it should be enough of a defence to prove that one did not know something, and that would be conveyed by the amendment. Suspecting something is more difficult to prove. One might suspect that various offences had been committed, but the test should be whether one would reasonably have been expected to know that they had been committed. That is a better way in which to phrase the provision, and I hope that the Government will accept our constructive suggestion. 
 The amendment would give the courts a wide power to examine all the surrounding circumstances if an offence had been committed and they could decide whether the individual ought reasonably to have known the consequences of that. We have considered several practical examples of people who may unwittingly display tobacco advertisements and have therefore thought of a form of words that would provide an adequate defence. The phrase would create a proper test and it is one that we commend to the Government. The group of amendments would all apply the same wording to the Bill. Such defences would be important if it were alleged that an offence had been committed and someone was taken to court.

Yvette Cooper: Given that the amendments are slightly different from each other, I shall refer to them in turn. Amendments Nos. 26, 27 and 28 would replace ``had no reason to suspect'' with ``could not reasonably have been expected to know''. They reflect the key argument made by the hon. Member for Meriden (Mrs. Spelman). It is not at all clear that there is any material difference between the two forms of wording, and it is hard to think of an example that might fail one test but pass another. If a vendor was given good reason to suspect, or was told that there might be a tobacco advertisement in a particular product and did not check, clearly, he had reason to suspect. He could also have been reasonably expected to know. He had the power to check, but did not do so. That case would fail both tests. I cannot think of an example of a case that would fail one test and not the other. The material difference is unclear.

Caroline Spelman: Perhaps I can help. In many such situations, the problem is that no one is told anything. Even under the Minister's own formulation, the onus is on individuals to have their wits about them, and actively to search through magazines to find advertisements. It is quite possible that those going to court to defend themselves will not have been told anything. The accent is on what one should know without being told about it.

Yvette Cooper: In that situation, there is no difference between ``had no reason to suspect'' and ``could not reasonably have been expected to know''. Clearly, in a case in which tobacco advertising was banned and there was no reason to suspect that a particular magazine or product was breaking the advertising ban, the vendor would have a clear defence in law. It is not clear what difference there would be between defences under the two forms of wording involved. The Government do not intend any such distinction. Both phrases are used in legislation, although ``reason to suspect'' is far more commonly used.
 The hon. Member for Meriden also made a point about courts having to take account of the particular circumstances involved, but that would be the case with either wording. With ``have no reason to suspect'', courts would need to consider the individual circumstances involved and whether people had reason to suspect, given their particular circumstances. The Government do not, therefore, accept amendments Nos. 26, 27 and 28. 
 Amendment No. 7 is different. It replaces ``he could not reasonably have'' with ``it could not reasonably have been''. I assume that the intention behind the change of wording is to make the clause more objective by reference to a reasonable person rather than a particular individual. However, the wording does not achieve that. With either wording, the courts will still examine the individual circumstances involved to discover whether a case could reasonably have been foreseen by that person. A change of wording would make no massive material difference. We should not create a test about a reasonable person, but we should take account of individual circumstances. A person in an advertising business might be in a far stronger position to foresee the effect of an advertisement or visual image than someone with no experience of advertising who is simply distributing the product to shops in a white van. The test should be about individual circumstances rather than an objective single reasonable person. 
 Amendment No. 29 would provide a specific defence for someone involved in ``publishing and distributing'' an insert that contains a tobacco advertisement. That person does not require a specific defence for clause 2(3), as that provision does not create a new offence but merely explains the extent of the offence under clauses 2(1) and 2(2). Clauses 2(1) and 2(2) are already subject to the sort of defence that amendment No. 29 would create—in clause 5(4) for distribution, and in clauses 5(1) and 5(2) for publishing. A specific defence for people involved in publishing and distributing products that involve a specific and separate entity is already in place in the Bill. However, the amendment raises an anxiety, although the amendment itself does not specifically deal with it, which relates to whether the publications referred to in clause 3—which deals with the proprietor and editor of the publication and everyone involved in the chain—include publications with an insert. If they do not, a seller covered by clause 3(c) commits no offence in selling a publication with an offending insert. If they do, the seller has a defence under clause 5(6). We shall consider that matter further and establish whether we need to clarify it. Amendment No. 29 raises a helpful issue, although the specific point with which it deals is unnecessary, because a defence has already been provided in the Bill under clauses 5(4), 5(1) and 5(2).

Caroline Spelman: That is helpful. Perhaps, as I do not have a legal background, I am simply not familiar with enough different measures, but I was rather struck by the idea that people would have to prove that they did not suspect. Perhaps I do not have a suspicious mind, and perhaps we shall create lots of suspicious minds as a result of the Bill, but if that is the received legal perspective, I shall have to accept that it is widely used and that the courts are comfortable using it. I had hoped to achieve what seemed to me to be more objectivity, but according to the Minister's explanation the courts are used to trying to establish objectively whether a person should suspect something or not. No doubt they must do that a lot of the time in relation to other offences.
 I was pleased to hear the Minister say that she would reconsider amendment No. 29. I may not have drafted it as well as I might, but she has understood our anxiety. The amendments relate to the Bill's workability. It is important to get the Bill right and as far as possible to anticipate the pitfalls that may arise with the wording if it is left unamended. On the basis that the legal system is comfortable with people having to prove that they did not suspect something, although I imagine that that is not always easy to prove, I accept that the clause has more objectivity than meets the layman's eye with its present wording. On the understanding that the Minister will reconsider amendment No. 29, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Amendments made: No. 18, in page 3, line 2, after `advertisement' insert 
`, otherwise than as mentioned in section 2(4),'.
 No. 19, in page 3, line 5, leave out subsection (5) and insert— 
 `(5) In relation to a tobacco advertisement which is published or caused to be published by electronic means by an internet service provider, it is a defence for him, if charged with an offence under section 2(1), to prove that he was unaware that what he published or caused to be published was, or contained, a tobacco advertisement. 
 (5A) In relation to a tobacco advertisement which is distributed as mentioned in section 2(4), it is a defence for a person charged with an offence under section 2(2) of distributing it or causing its distribution to prove— 
 (a) that he was unaware that what he distributed or caused to be distributed was, or contained, a tobacco advertisement, 
 (b) that, having become aware of it, he was not able to prevent its further distribution, or 
 (c) that he did not carry on business in the United Kingdom at the relevant time.'.—[Yvette Cooper.]
 Question proposed, That the clause, as amended, stand part of the Bill.

Caroline Spelman: I wanted briefly to have a stand part debate, as we are trying to make some progress. I should like to discuss a general issue that relates to clause 5 and to ask the Government about the style in which the Bill has been drafted. As an Opposition Front-Bench spokesperson, one scrutinises only a certain number of Bills during a Session. I have never come across this style of Bill—on the one hand, the Government set out offences of which people can be guilty, while on the other they set out a series of defences that can be used by people accused of those offences. The Minister might tell me that that is common, but it seems a strange way to proceed. I have considered several other Bills during my short parliamentary career that were not formulated in that way.
 The Food Standards Bill, for instance, described serious offences of which people might be guilty, which might lead to lapses, food poisoning, and, ultimately, fatalities. However, that Bill was not formulated with offences on the one hand and defences on the other. This style makes it difficult, in some ways, to scrutinise the Bill clause by clause. It is difficult to debate properly the offences described without taking into account the defences that might be used. Perhaps that is a received part of the culture. 
 If I were a tobacconist or tobacco manufacturer reading the Bill, however, I would probably devote a great deal of time to looking at the defences that I might use, because I would realise that the stakes were quite high and that I had previously, as part of my normal custom and practice, put up tobacco advertisements or distributed literature that advertised tobacco. If I had been used to doing that for many years— even decades if it had been my job for most of my life—that would be a major change of culture. Clearly, the Government will be sending out a big signal in legislating to ban tobacco advertising. However, they are asking people who run such commercial premises to change the habits of a lifetime. 
 The clause should be read very carefully, as it outlines an important set of defences. The lay person must be aware of the defences that he can produce, the most important of which is being able to prove—I still prefer my formulation—that one could not reasonably have known that something was a tobacco advertisement, or, in the Government's formulation, that one had no reason to suspect that it was a tobacco advertisement. We therefore must return to the argument that, without certain definitions, it will be difficult to define a tobacco advertisement. In the past, a pile of cigarette packets would not have constituted a tobacco advertisement in the eyes of most people vending such products. Under the Bill, it will be necessary to know whether cigarette packets constitute a display, and, if so, how many. Unless that is clearly spelled out, people who have previously, legitimately and in a law-abiding manner carried out their trade will have to go to court to establish what is and is not an advertisement. Although the defences give scope to a person who has unwittingly committed an offence to defend himself, they are not completely watertight without a clear definition of an advertisement. 
 I am making a general observation about the style in which the Bill has been constructed. In relation to the swings and balances of offences and defences, it will be interesting to hear from the Minister why the Bill has been so constructed.

Ian Bruce: I certainly do not want to delay the Committee when we have insufficient time to discuss the Bill fully; nor do I want to adopt Government Members' Trappist tendency and allow the clause to be added to the Bill without pointing out how inadequately it covers the issue. The Government have published a Bill with a pile of loopholes that create a lawyers' charter. Conservative Members do not look forward to that bonanza, because unfortunately none of us is a qualified lawyer. Tobacco manufacturers spend £100 million a year on advertising and promotion and one can imagine the lawyers salivating as they look at clause 5 and saying, ``Look at all the wonderful sets of defences. We can get into court. We know that the tobacco industry successfully challenged the European Commission in the courts and won.''
 I was contacted last evening by the Internet Service Providers Association, which is unhappy about the way in which the Government are dealing with issues relating to the internet. They told me that they had a meeting scheduled with the Minister a week on Wednesday, after the House has finished considering the Bill, to discuss how the Bill can be changed around. It is an inadequate Bill that will not do what is intended to do, and I am surprised that Labour Members have not leapt in and said to the Minister, ``Well, Minister, you ought to create a watertight Bill, not the dog's dinner that we have at the moment.'' 
 We have already pointed out that Government Departments work in silos. When the Department of Trade and Industry found the regulation of investigatory powers legislation too complex, it passed it to the Home Office. The hon. Member for Pontefract and Castleford (Yvette Cooper) clearly, because of the dearth of talent on the Labour Benches, has a good career, but she has been given a dog's breakfast, and, unless she gets a grip on the Bill and provides something that will not go straight into the courts and involve us all in great expense—and not reduce tobacco consumption by a single cigarette—it will be one of the nails in the coffin of her political career.

Yvette Cooper: The clause sets out the defences for people who are involved in various aspects of tobacco advertising, promotion and distribution. Our approach is to set out a comprehensive ban on tobacco advertising and to provide for specific defences. I have made it clear from the beginning of our discussions in the Committee that that is our approach.
 There is a reason behind that approach. Advertising is a fluid process, as is marketing. Companies continually change the way they appeal to us; they try to grab our attention by finding new ways to promote their products and new forms of advertising through sponsorship, coupons and so on—different ways of appealing to us in order to sell their products. That is what advertising and marketing are about. 
 How much more fluid is the process when one form of advertising is banned. International experience has shown that if one form of advertising is banned, money will flow into another form. That is certainly what has happened with tobacco advertising. We are well aware—even the hon. Member for South Dorset (Mr. Bruce) made the point in a previous sitting—that tobacco companies will look for loopholes and ways to get round the tobacco advertising ban. We do not doubt that various tobacco companies will attempt and, because of international constraints and so on, there will be a limit to how much we can do. 
 For those reasons, it is right to begin with a comprehensive ban and then to create specific, targeted defences. That will maximise our chances to have the flexibility to cope with new forms of advertising and new approaches. We shall then have targeted defences specific to the circumstances of individuals and companies at different stages along the chain of tobacco advertising and tobacco product promotion. 
 It is right that we provide some defences. I was not quite clear whether the Opposition were arguing that we should not provide particular defences for certain individuals. It is absolutely right that we should, whether it be for things that they could not foresee or could not suspect. It is also right that we should provide particular defences for those involved with the internet, because we note that there are particular circumstances there.

Ian Bruce: I think that my hon. Friend the Member for Meriden would agree that we do not have in the Bill a proper definition of what an advertisement is and what is banned. So we start off with an ill-defined offence and then we have a set of ill-defined defences against it. That is the basis of our objection to clause 5.

Yvette Cooper: We have had this discussion already. The word ``advertisement'' is used in legislation; it is common for words in legislation to have their natural meaning. We have had a detailed debate about advertisements, and it is perfectly acceptable and sensible that the Bill takes the approach of a comprehensive ban on advertising, with specific defences.
 We have addressed in the Government amendments the points raised about internet service providers because we recognise the position of those involved in electronic distribution. Officials have had all kinds of discussions with ISPs and the Department of Trade and Industry on the issues around e-commerce. I recognise that ISPs have concerns, and we have given them reassurance both in the Government amdts and by making our intentions clear in an earlier debate.

Ian Bruce: Will the Minister be having a meeting with the ISPA immediately after the Bill finishes its passage through the House of Commons?

Yvette Cooper: I understand that a meeting is scheduled between officials and the internet service providers, and I can also tell the hon. Gentleman that officials have had other conversations and contacts with ISPs and continuing discussions with the DTI to ensure that the Bill is fully compatible with the e-commerce directive and that we are fully up to date. We recognise that this is a complicated area, especially given the international issues involved, but it is a sensible approach to set out a comprehensive ban on tobacco advertising and then to set out specific, legitimate defences for individual circumstances, because in that way we will maximise our chances of reducing the kind of tobacco advertising that is so damaging to public health and especially to the health of children.
 Question put and agreed to. 
 Clause 5, as amended, ordered to stand part of the Bill.

Clause 6 - Specialist tobacconists

Humfrey Malins: As we have had a fairly wide-ranging debate on specialist tobacconists, I may not allow a clause stand part debate. It will depend on how this debate goes.

Caroline Spelman: I beg to move amendment No. 9, in page 3, leave out lines 18 to 20.

Humfrey Malins: With this, we may discuss the following amendments: No. 32, in page 3, line 21, leave out `shop' and insert `business'.
 No. 31, in page 3, line 22, leave out `half' and insert `one third'. 
 No. 33, in page 3, line 22, leave out 
`on the premises in question'. 
No. 34, in page 3, line 28, after `available', insert 
`(or, if the most recent period for which accounts are available is different from twelve months, that period recalculated to an equivalent twelve month period on a pro rata basis)'.
 No. 46, in page 3, line 34, at end add— 
 `(5) No offence is committed under section 2 and 3 in relation to an advertisement which is limited to the provision of particulars about a specialist tobacconist and the fact that it sells tobacco products.'.

Caroline Spelman: I hope, Mr. Malins, that you will be sympathetic to our taking a little time over the way in which specialist tobacconists are to be regulated. We are talking about a lot of small businesses, many of them family businesses built up over a long period. What they have been doing will change, all of a sudden, from being legal to being illegal—potentially, if they get it wrong. Therefore, it is important that we help them by drawing from the Government as much detail as possible about how they will be affected by the Bill. Although the amendments have been grouped together, they are different. I cannot promise to deal with them as swiftly as we dealt with the previous group.
 There are at least 350 cigar suppliers in this country. Many of those businesses are small and their owners will be listening attentively to the debate on this clause. Government and Opposition have a responsibility to speak up for the smaller players, as it is not easy for them to change rapidly how they do things—they do not always have the flexibility of large corporate players. 
 Amendment No. 9 would remove subsection (1)(c). It is a probing amendment, relating to our worry that small businesses may have to go to court for a ruling about what qualifies as a tobacco advertisement on their specialist premises. Hitherto, owners of such businesses have had to advertise to pursue their livelihood, so what they are permitted must be crystal clear. My hon. Friend the Member for South Dorset referred to the failure to define ``advertisement'', which is the fundamental flaw in the Bill. That will hamper specialist tobacconists in knowing what they may do on their premises and in their business. 
 It would not be easy for a small business to go to court for clarification on this matter; it would cost a lot of money, and many would be deterred by the hurdle of going to court. Some business owners accused of the offence might feel that they would rather give up than go through the rigmarole, cost and indignity of having to go to court. 
 The amendment is designed to impress upon the Government that hiving off clarification into regulations by an ``appropriate Minister'' is not satisfactory for the specialist tobacconists, as they remain unclear about what qualifies as an advertisement. The Minister may help us over the guidance. She said that she would consult before it was issued, and I urge her to do so with those small specialists. They should not simply be lumped in one camp, as some have shops and some do not, so we need to ensure that the Government catch in their consultations all those likely to be affected. At the preliminary stage of debate on the Bill, the Government may not have realised that some of those 350 cigar manufacturers do not have a shop per se, and that that is why they depend so heavily on mailings. Those businesses need clarification about what is allowed. 
 Amendment No. 32 is not a probing amendment. I hope that it offers a constructive and sensible suggestion. Not all specialist tobacconists have shops—I hope that that message has got across loud and clear. If the Government want the Bill to work well, they should pay attention to the word ``shop'', which is too constraining and will not catch all the businesses that they hope to catch with the tobacco advertising ban. The amendment is self-explanatory and I hope that the Minister will agree to the change. If she leaves the word ``shop'', there will be consequences, because some specialist tobacconist shops are part of a chain. What would happen if shops within such a chain were treated differently? It is not impossible that that might happen. The word ``shop'' may trip the Government up in their intentions. 
 A chain may also have one shop that means that it qualifies, in the aggregate as a specialist tobacconist, although the other shops in the chain do not qualify separately. That does not sit well with the clause. The chain may be both a specialist and non-specialist supplier and we must decide how such a business would be affected by the Bill. Using the word ``business'' would clarify the matter. The clause as it stands will simply not work in practice, so I hope that the Government will reconsider the wording. Left as it is, it will weaken the Bill. 
 Amendment No. 33 relates to where the trading of tobacco products is carried out and would catch the specialist tobacco businesses that deal mainly, if not wholly, through mail order and web sites. Such businesses may not have a retail outlet on a high street, but trade their specialist products, which are often of high value, in a different way. As the clause pertains to specialist tobacconists, it should deal with the diverse way in which they retail. We need guidance from the Minister as to how those sales will be regarded for sales threshold qualification purposes, if they take place away from the principal shop premises. That brings us back to the previous amendment. The clause is constrained and weakened by the use of the word ``shop''. 
 Amendment No. 34 is different again. It is designed to provide a reasonable degree of protection for small businesses starting out. Specialist tobacco businesses come and go in different locations; because of business rates and fluctuations in trade, it is not easy to hold one's place on the high street. The clause may place an excessive burden on a new business. All hon. Members would accept that a fledgling business in its first 12 months of trading—regardless of the product in which it deals—cannot operate to full strength, and will find it difficult properly to assess how things are going. Inevitably, such businesses have to face high capital costs up front when they start up. 
 The amendment would change the clause, so the period could be 
``recalculated to an equivalent twelve month period on a pro rata basis''. 
It is a probing amendment that would protect start-up businesses.

Yvette Cooper: I struggled to understand amendment No. 34. Could the hon. Lady say a little more to clarify what difference the wording of amendment No. 34 would make in practice? What is the difference between the words
``or, if the most recent period for which accounts are available is different from twelve months, that period recalculated to an equivalent twelve month period on a pro rata basis'' 
and the wording in the Bill?

Caroline Spelman: It is an attempt to achieve a pro rata effect. If a business has been operating for only a short time, in assessing the proper sales level, the Government should take full account of the pro rata pattern of sale. It is as simple as that. Its purpose is the same as that of the Government: to be reasonable in calculating the volume of sales.

Kevin Barron: Why should we?

Caroline Spelman: In the early stages of operation, it is difficult for a small business to calculate accurately what its volume of sales will be. It may be fortunate, when it starts up, to sell a great number of products and will continue on a high for a long time. Typically, however, that is not the case and sales take some time to get off the ground because customers have to find the location—or relocation—of the business. It takes time to arrive at an accurate reflection of the quantity of product that is sold.
 Amendment No. 46 is a probing amendment to clarify that generic advertising by specialist tobacconists will not be illegal. Specialist tobacconists do not usually sell anything other than tobacco products and accessories. They need guidance from the Minister about what they can and cannot do. Under clause 6, as drafted, they would not enjoy the protection that the defences have given to other suppliers of tobacco products. Specialist tobacconists are a group for whom we need to work hard to make it clear what they may or may not do. A simple statement from a specialist tobacconist about the existence and location of the business and the wording, ``Suppliers of fine cigars'', for example, may be considered an advertisement under the Bill. 
 The failure to define ``an advertisement'' at the beginning of the Bill does not make it easier for specialist tobacconists. We appreciated the concession that they could continue to put their name, address and telephone number in Yellow Pages, but we did not get to the bottom of what other generic advertising may be illegal in future.

Ian Bruce: I was grateful to the Minister for saying that that was what the Bill meant, but that is not what a judge might say is the position on Yellow Pages. We ought to make it clear that Conservative Members do not guarantee that someone who advertises their name in Yellow Pages as a seller of fine tobaccos will not be prosecuted under the Bill.

Caroline Spelman: Once again, we are back to the trouble with this Bill. As it stands, a small business may have to go to court for a ruling. Members of the Committee will probably recall that my hon. Friend brought with him an example from Yellow Pages, which helped to illustrate what my amendment is driving at. My hon. Friend may have it with him, but as I recall, under ``Tobacconists'' the page listed a series of telephone numbers and addresses of specialists.

Ernie Ross: Here we go again.

Humfrey Malins: Order.

Caroline Spelman: I have to state for the purposes of Hansard that the central section lists tobacco retailers. We understand from the Minister that it would be legal to continue in that way. A series of other businesses that advertise on the same page have larger slots. If I understand it correctly, we are going to make it illegal for tobacco retailers to do the same, but they will not have been used to that. Some who saw other purveyors of retail articles advertise in Yellow Pages products such as recording and cleaning machines and a range of other items might advertise because it was common practice. They will get the message that there is a ban on tobacco advertising, but they might wonder what they can do beyond putting their names and addresses in Yellow Pages. The guidance becomes all important at that stage.
 Under the amendment, retailers of specialist tobacco products could be certain that they could include details about their existence, location and activities in directories, references and books and on websites, but they need clearer guidance on what other forms of generic advertising that pertain to their businesses, such as signs saying ``Suppliers of Fine Cigars'', may be outlawed. 
 Retailers will find it difficult to accept such constraints on their normal commercial practice. The guidance about what specialist tobacco suppliers may do is not crystal clear. As I have said on numerous occasions, it is unreasonable to expect specialist tobacco retailers to test the opinion of the courts as to what constitutes a generic advertisement for a specialist tobacco product. It should be clearly stated that generic advertising that does not specify a brand will be permitted. A sign that reads ``Suppliers of Fine Cigars'' gives no indication of brand. If we want to cut smoking prevalence and we know that branded products are the driving force behind that prevalence, we must re-examine what generic advertising a specialist tobacconist may be allowed. 
 The group contains a number of different and unrelated amendments that are designed to make the clause clearer for specialist tobacconists, who will read with great attention the Minister's response. I hope that she will accept the spirit in which the amendments were tabled. The aim was to make the clause more workable for small businesses that do not have the resources to clarify in court what we, as legislators, should be able to clarify for them.

Ian Bruce: On amendment No. 32, will the Minister clarify what is the difference between retail and wholesale? In clause 4, it is clear that a wholesaler selling to a retailer can send any communication as long as it goes there directly, but there are problems with banning advertising or allowing advertising only in certain areas. Line 21 refers to a
shop selling tobacco products by retail. 
A number of businesses, such as wholesalers that sell to retail tobacconists and the retail alcohol trade—off-licences and publicans—may be selling to two completely separate audiences. Wholesalers that have a legitimate advertising and promotional strategy may have people entering their premises who may be not tobacco retailers, but retailers of other products. That will create a minefield—individuals who purchase products other than tobacco from the wholesaler will be faced with advertisements and promotional items. That will, in effect, encourage them to become smokers or to buy a particular brand for their own consumption. 
 To specify that exemptions apply only to retailers, not wholesalers, is an example of poor drafting that may lead us into yet another minefield. Legitimate wholesalers that are carrying out promotion work to retailers might be excluded from doing so, because they may be in contact with retailers who buy other products from them. 
 What about a wholesaler such as Makro? Only retail businesses can have Makro cards, yet I suspect that 90 per cent. of its customers are buying goods for their own consumption. Does the Minister have any thoughts about whether a wholesaler that, in effect, sells cigarettes to people for their own consumption will be excluded from so doing under the Bill when it advertises or takes part in promotional activity within the store, by the use of the word ``retail'' in line 21 of the clause?

Caroline Spelman: I hope that the Committee will bear with me. I am missing my Whip this morning. He would have kept me in order. My hon. Friend the Member for Mid-Worcestershire (Mr. Luff) sends his apologies to the Committee— following a trip to France, he has food poisoning. No doubt, he would have pointed out to me that I had not explained amendment No. 31. I wish to deal with all the amendments together, albeit that they deal with different items.
 Amendment No. 31 would reduce the amount of products that would be calculated for total sales from one half to a third. I shall explain the reasoning behind it. The required 50 per cent. threshold of total sales of 
``cigars, snuff, pipe tobacco and smoking accessories'' 
is high, when we take into account that a high percentage of the sales price of cigarettes and hand-rolling tobacco comprises excise duty. The duty on pipe tobacco and cigars is lower and, in general, it is not applied to other smoking accessories. It is therefore easier for sales of cigarettes and hand-rolling tobacco to be high and for those sales not to be of as great significance to the profit margin of the specialist tobacconist as sales of cigars, pipe tobacco and smoking accessories. 
 That there is differential excise on different tobacco products is an important point. The threshold for qualification as a specialist tobacconist should be reduced from one half to one third. Without the amendment, there is a great risk that certain specialist tobacconists that are not necessarily represented by a big lobby or have any particular clout in respect of certain legislation will be discriminated against. Differential excise duty will affect the calculation of sales on which the clause is based. I am grateful that the Committee has allowed me to explain the amendment, which otherwise might not have been clear.

Yvette Cooper: I shall speak to each of the amendments in turn, as they would have different effects. Amendment No. 9 would remove the regulation-making power relating to specialist tobacconists. We do not anticipate using the powers. The status quo on advertising in the average specialist tobacconist shop is fine by us. The power to introduce regulations is provided to cover future developments and in case the defence for specialist tobacconists is abused and used to promote tobacco advertising in a way that goes against the broad intentions behind the Bill. I refer not to the promotions or advertising that take place in the average specialist tobacconists at the moment, but to new forms of advertising and developments that we have not anticipated that may arise under the defence provided in clause 6. Let us suppose that cigars become the big fashion among teenagers and the big tobacco product that all teenagers want to smoke, or that a specialist tobacconist product becomes the fashionable product for children and results in anxiety about children on public health grounds. It is not the intention behind the Bill that a loophole should be allowed to develop.
 If present circumstances continue, we do not anticipate using the powers. However, we believe it right, given the broad intentions behind the Bill, to take the powers in reserve. It is clear in the Bill that specialist tobacconists may advertise cigars, snuff and other specialist tobacconist products anywhere on their premises. 
 Amendments Nos. 32 and 33 are related. They are designed to end the focus on the shop and focus instead on the business. It would be wrong to broaden the defence for specialist tobacconists to include all forms of business as opposed merely to shops and for good reason. The rationale behind the limited exemption for specialist tobacconists, which relates to the European directive, was that people who go into such shops have already decided that they are interested in purchasing tobacco products. 
 A purist argument would be that we should prevent all tobacco advertising in specialist tobacconists except at point of sale, regardless of who they are, because they promote and sell tobacco products. We have not taken that approach. We accept that they should have a specialist exemption because people have already chosen to purchase a product or have already decided that they are interested in purchasing a tobacco product when they walk in the door. 
 However, that principle does not apply to mail order, for example. It does not apply to business conducted beyond the walls of that shop. Why should specialist tobacconists be allowed to bombard households with direct mail about tobacco products, even if those products may be less harmful, depending on how they are smoked? Why should they be able to advertise over the internet or anywhere else tobacco products to people who have not walked into the premises and chosen to go into a tobacco shop to buy a product?

Caroline Spelman: One answer is that, if the United Kingdom contains only 350 cigar manufacturers, having a shop in a particular village or town would mean that much of the customer base of those manufacturers would be simply too far away for practical purposes for the sale of such products. There are simply not enough of them when divided among 57 million people.

Yvette Cooper: Like everyone else, manufacturers are allowed direct point-of-sale advertising, including on the internet, subject to the regulations. Like everyone else, they can respond to requests for information about their products, just as we have said that other forms of tobacco product vendors or producers should be able to do. However, this is a public health Bill and we judge these exemptions on whether or not people are promoting tobacco products.
 There is a distinction between those who walk into a tobacco shop and decide that they want to purchase and those who have not decided whether they want to purchase cigars or anything else receiving mailshots, coupons or any other form of unsolicited advertising through the post. Such people may be trying to give up smoking. Why should we allow that type of exemption? We can accept an exemption if people have already made the choice, but there is no clear justification for an exemption for specialist tobacconists. They will have the same ability as everybody else to do direct point-of-sale advertising on the internet, or to communicate with their customers, subject to the rest of the Bill. However, it would be wrong on public health grounds, given the overall aim of the Bill, to allow a particular sort of direct marketing and advertising to continue.

Ian Bruce: I am still struggling to work out where the Bill allows people to advertise their product at point of sale and where it states what is an advertisement. Simply having a cigarette packet in view clearly is an advertisement, but where does the Bill allow the physical activity of retailing to go on, where somebody goes to purchase a packet of cigarettes, or whatever, outside a specialist tobacco shop? Where is the defence in the Bill?

Yvette Cooper: I was rapidly flicking through the Bill as the hon. Gentleman was speaking. Clause 4(2) states:
 ``The display or advertisement in a place or on a website where tobacco products are offered for sale, in accordance with any requirements specified by the appropriate Minister in regulations, of the products offered for sale there and of their prices is not an offence under this Act.'' 
We had a detailed discussion of that under clause 4; we have in fact already amended it. I am reading from the original draft of the Bill; we have already passed Government amendments that make it clear that there is a distinction between advertising and display. 
 We will return to the issue. I have already signalled the Government's intention to table further amendments to make clearer the issues around display, because we need to separate out some specifics on both display and advertising. We have made it clear that advertising at point of sale is to be permitted, but subject to regulations on which we will of course consult. That applies to specialist tobacconists selling outside their shop in the same way as it does to everyone else. 
 Amendment No. 31 refers to the proportion of sales of tobacco products required for a business to be counted as a specialist tobacconist. In the end, we draw the line where we choose, but it is sensible to say that someone can be counted as a specialist tobacconist if the majority of the products sold are specialist tobacco products. To make it the majority—50 per cent.—seems to me perfectly reasonable and to draw the line any lower would make it hard to see whether people were specialist tobacconists rather than some other sort of vendor who also sold some specialist tobacco products. Most people would regard 50 per cent. as reasonable, because that allows us to say that the majority of products sold by a shop are specialist tobacco products.

Caroline Spelman: Does the Minister accept the practical point, which is that the differential excise duty may drive the split in the sort of products that a business vends? That is getting perilously close to Government dictating what a specialist supplier should or should not sell. That will be the effect of regulation.

Yvette Cooper: In the end, they can sell what they like. We are saying that they can have a defence under the Bill if they sell more than 50 per cent. specialist tobacco products. If they do not, that is fine; they have the right to sell whatever products they want, but if they do not sell more than 50 per cent. specialist tobacco products, we will not count them as a specialist tobacconist for the purposes of the Bill and we will not give them a defence. That is reasonable.
 I am still struggling to understand the purpose of amendment No. 34. The Bill states that businesses will be assessed for as long as they have been established, if they have not been established for 12 months. It is a question not of the overall volume of sales, as I accept that that may grow during the year, but of what proportion of the sales comprises specialist tobacconist products—be it for three months, six months, or whatever period. We could not legitimately make the assessment on the basis of any information other than sales. I am not clear what the difference is between making the assessment on the basis of the three months or of a pro rata projection from that three months. In the end, the proportion of sales that are specialist tobacco products within that three-month period is what counts—whether or not it is multiplied in a pro rata calculation for 12 months. I do not understand what the amendment would achieve and I reject it for that reason. 
 Amendment No. 46 is an attempt to clarify the sort of advertising and information provision that specialist tobacconists will be allowed. We have had the discussion before so I will reiterate what I said and give an example as further clarification. 
 We intend to prevent specialist tobacco companies not from advertising their business but from advertising their tobacco products outside their premises. For example, they will be allowed to place an advertisement in the Yellow Pages that says something like, ``J.R. Hartley, Specialist Tobacconist, sells cigars, pipes and snuff''. However, a half-page advertisment that said, ``J.R. Hartley, cheapest Davidoffs in town, half-price snuff, finest range of sophisticated cigars—smoking a Cuban cigar makes you sophisticated'', would clearly be promoting tobacco products. We do not want to permit such promotion and that is the entire point of the Bill. It is clear from our wording that specialist tobacconists will be allowed to provide information and listings in the Yellow Pages, but not to use it to promote and advertise tobacco products. 
 The hon. Member for South Dorset asked a question about retail, but I was not entirely sure what his concern was. A defence under clause 4(1)(a) states that 
``a communication made for the purposes of the tobacco trade'' 
is not covered by the Bill, as long as it is 
``directed solely at persons engaged in any capacity in that trade''. 
If the communication is directed more broadly, beyond that trade, it is not covered by the defence and will be caught by the Bill.

Ian Bruce: People who go to a specialist tobacco wholesaler to buy other products may see the advertising and promotion. I wonder how the Government will protect the wholesaler specialising in tobacco sales, who is not covered by the retailer defence—[Interruption.] It is difficult for me to concentrate on such a difficult matter with constant heckling from a sedentary position. I cannot hear a word that the hon. Member for Dundee, West (Mr. Ross) is saying. If he wants to intervene, I shall be pleased to take the intervention.

Ernie Ross: It is a contradiction in terms—

Humfrey Malins: Order. The hon. Member for South Dorset was intervening, and we cannot have an intervention on an intervention.

Yvette Cooper: The significance of the word ``retail'' is still not clear to me. I give way to my hon. Friend the Member for Dundee, West.

Ernie Ross: If the person is a wholesale specialist tobacconist, all he will be wholesaling is specialist tobacco products.

Yvette Cooper: My hon. Friend is right. We want to prevent people who are intending to buy other products that are not related to tobacco from being bombarded by tobacco advertising. That is why a specialist tobacconist is defined as a shop in which more than 50 per cent. of sales derive from tobacco products. That is to minimise the possibility of someone intending to buy goods that are not related to tobacco. If people intend to buy such items, why enter a specialist tobacconist? The whole point of the clause is to ensure that specialist tobacconists are those that deal with tobacco products, thus people who enter such premises will have already decided that they are interested in tobacco products. Under those circumstances, tobacco advertising within such premises is acceptable.

Ian Bruce: The hon. Lady and her hon. Friend have obviously missed my point that a specialist wholesaler may sell two different products. For example, it may sell fine wines and expensive alcohol and specialist tobacco products at the same premises. A customer may enter premises to purchase only alcohol products, but be affected by tobacco advertisements. It is strange that only retailers have the defence whereby they can advertise such products rather than wholesalers in the same position.

Yvette Cooper: That is because wholesalers have a different defence under clause 4(1)(a), which comes into effect if they have a
``communication made for the purposes of the tobacco trade and directed solely at persons engaged in any capacity in that trade''. 
The retail defence is set out for specialist tobacconists that are engaged in the retail trade. We should distinguish between wholesalers and tobacco advertising within specialist tobacconist retailers.

Ian Bruce: What will happen when a customer who goes into a wholesaler that is not a specialist tobacconist to buy fine cognac is offended because he is bombarded with promotions and advertisements for tobacco products and wants the wholesaler to be prosecuted? The wholesaler will have no defence.

Yvette Cooper: The wholesaler has the defence if communications are directed solely at people engaged in any capacity in the tobacco trade. It is reasonable that wholesalers have a defence in respect of those involved in tobacco trading and not other matters. I do not see a problem. However, I shall scratch my head and reflect further on the matter to see if I can come up with a problem because the hon. Gentleman is being so persistent.
 I think that I have covered all the amendments in the group. The Government cannot accept any of them.

Caroline Spelman: You have given us advance warning that you will not allow a stand part debate, Mr. Malins, so my remarks will comprise general observations on clause 6. Our proceedings have been disappointing, given that we have discussed matters in a good-natured way. We have tried to be constructive. To sum up what the Minister said—basically, she has told specialist tobacconists that they must lump it. She showed little sympathy.
Mr. Ernie Ross indicated assent.

Caroline Spelman: The hon. Gentleman nods. It is my nature to be consensual and I do not usually make such remarks, but the Government's attitude showed arrogance. Commercial activities that people have carried on legitimately for many years will suddenly become illegal. That is a big change for practitioners to assimilate and small businesses will be worst affected. The Government said that they had listened to small business. What I heard was a remarkably hard-hearted and hard-nosed attitude. There was little appreciation of the practical arguments that I was trying to put forward.
 The total rejection of all my amendments could have interesting and unforeseen consequences. To achieve a better defence under the Bill, suppliers of specialist tobacco products could be forced to set up a shop; they could then at least cover themselves by saying, ``At least we have a shop''. That might produce a rash of tobacconists on the high street—who knows? That may be the effect of going about the legislation in a heavy-handed way without taking account of the practicalities. 
 There may be another effect. The differential excise duty means that retail sales have been bumped up by sales of cigarettes with the higher excise duty on them. One has to sell a lot more cigars and other specialist tobacco products now to qualify to be a specialist tobacconist. It is not the tobacconists' fault that there is differential excise duty on tobacco products: they have no control over that. It is within the gift of the Government to vary the excise on different tobacco products. Their stance is remarkably rigid. 
 My amendments on specialist tobacconists have been rejected, but I still find it difficult to imagine a time when the youth of today will have the disposable income—and the desire—to buy cigars. The Minister must have had a privileged education: at her school, youngsters had enough money to buy cigars to smoke behind the bike shed. Where I came from, they jolly well did not—there was no way we could get that sort of money. Anyone who smokes—and I do not—knows that one cannot chain-smoke cigars without feeling queasy by the second or third. 
 The Minister's argument lacks common sense and a user-friendly attitude towards the small players who will be hit hard by the legislation. She could have come a little way towards meeting me. I do not feel so strongly that I am prepared to press the amendments to a vote. The Government have a socking great majority—[Interruption.]

Humfrey Malins: Order. There are too many sedentary interventions.

Kevin Barron: Will the hon. Lady give way?

Caroline Spelman: No. The Government have a socking great majority and can get their way. My general observation of their attitude towards the debate on the amendments and the clauses is that it is incredibly harsh-minded towards small businesses. They fail to recognise that many specialist tobacconists are now outside—

Kevin Barron: Will the hon. Lady give way?

Caroline Spelman: No. Many special tobacconists will now fall outside the definition of a specialist. If the Government had stood back and thought with more common sense about specialist tobacconists and accepted one or two of the amendments, they would have made a difference without opening the floodgates or creating a massive loophole. In practical terms, that would have given specialist tobacconists a reasonable defence that will now be denied to some of them.

Kevin Barron: Briefly, the hon. Member for Meriden takes the matter out of context. Many people argued that clause 6 should not be in the Bill because it protects the interests of specialist tobacco shops. The hon. Lady wants to amend it into a nonsense, while saying that she doubts whether it should be there, but she is here, supposedly, to represent the interests of those small businesses. The Government have done that and, in doing so, have not taken all parts of the public health lobby along with them on the clause. That ought to be a matter of record in this Committee.
 Amendment negatived. 
 The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill. 
 Question agreed to. 
 Clause 6 ordered to stand part of the Bill.

Clause 7 - Developments in technology

Question proposed, That the clause stand part of the Bill.

Caroline Spelman: We are making swifter progress. I am anxious that we should have the chance to debate the latter clauses of the Bill, and, indeed, the new clauses, properly. We have only three sittings left and Labour Back Benchers have tabled a new clause, which we obviously want to have time to debate. Nevertheless, it is important to ensure that we do not let a clause slip through on the nod, which is why it is important to debate clause 7 stand part.
 The clause typifies the catch-all attitude of the Bill and I question its legislative relevance. As I said, we have not even succeeded in legislating adequately for existing new technology, such as internet provision—disquiet among internet service providers is evidence that we have not got that part of the Bill right. It is ambitious to have a catch-all phrase designed to deal with any subsequent developments in technology relating to publishing and distribution by electronic means that we have not even thought of. It is so futuristic as to make it almost irrelevant. It is more of a statement of intent than a real piece of legislation; it is so generally worded—

Maria Eagle: Stupid.

Caroline Spelman: I hear the hon. Lady saying that that is stupid. Perhaps she would like to tell me what she would regard as ``any developments in technology''. Does she have a better idea than I as to what is in the pipeline? Of course we do not know. That is a catch-all phrase that makes it singularly meaningless to debate it now, and it will never be debated again when it is brought into effect.
 If technology moved on sufficiently to create the circumstances envisaged in the clause, there would undoubtedly have to be new general legislation to apply existing laws to the new methods of commerce, just as in the case of recent electronic commerce legislation. The provision would be far better placed in such legislation, where the focus of those making the legislative decisions would be on what capacity the new technology had to make an impact. 
 I argued strongly at the beginning of our debates that the section on internet service providers and their role in advertising ought to be part of a Bill that dealt properly with their role in advertising a range of products, outside of a health Bill and in a Bill under the Department of Trade and Industry—a Bill that dealt with new forms of competition by electronic means. 
 It is ambitious to have this catch-all phrase in a Bill to ban tobacco advertising. It is unnecessary to put a single provision into a specific Bill, since any change in technology would require general legislative change. Just as there may be developments in technology relating to transmission by electronic means, with regard to which the Secretary of State may consider it appropriate to amend provisions of the enacted Bill, there might also be developments with regard to tobacco products, which would similarly call for amendment. Tobacco producers may find a hitherto unthought-of form of tobacco that can be absorbed by osmosis or some other means. Who knows? We cannot legislate now for unknown technological change. 
 There may be some justification for including in the Bill tobacco products that may be developed at some time in the future and to which the health risks that result from smoking tobacco products do not apply. A new tobacco product may have an important public health dimension, which would correctly be dealt with under this Bill. If it is not possible to promote a new tobacco product to existing smokers, as would be the case under the Bill, manufacturers cannot be expected to invest in the funds necessary to diversify into products that might pose a lower health risk. The fact that such products have not been developed and have not appeared on the market to date does not mean that such developments are not possible. We all accept that scientific knowledge and capabilities advance rapidly. None of us can accurately predict in which direction it may flow. The legislative relevance of the clause is therefore difficulty to justify. I question its place in the Bill.

Ian Bruce: I have warned the Government about the way in which the Bill would allow the internet to be used to get round the ban on advertising. The clause gives the Government additional powers, through the affirmative procedure, to make amendments in future. Such powers may break the European convention on human rights.
 The Secretary of State says that he does not believe that the Bill is incompatible with the provisions of the Human Rights Act 1998. For the sake of clarity, I have a copy of that Act in front of me. Schedule 1 contains the convention and paragraph 1 of article 10 on freedom of expression suggests that anyone can say anything that they like. However, paragraph 2 enables the Government to restrict people's freedom of expression on the grounds of protection of health. I am sure that that is what gives the Government confidence that they can legislate in this sphere. 
 Under section 12 of the Human Rights Act, however, someone may claim that they can still advertise tobacco in the United Kingdom on the grounds that the material has or is about to become available to the public. One of the defences is that, if the information will be available anyway, it should be possible to give it out within the United Kingdom. Otherwise, the individual's human rights are being superseded by the Act. That defence was used in the case of the former MI6 officer who published information that, under statute, it was illegal to publish in this country. Nobody disputed that it was illegal. He also had a contractual duty not to publish that information. He had it published, perfectly legally, on the internet. So he can go to the courts in the United Kingdom and say, ``Look, my rights under the Human Rights Act 1998 are being violated''. The clause would give the Government the power continually to change the rules to prevent use of the human rights defences in the Human Rights Act 1998. 
 I believe that the Minister—although she referred specifically to her officials—will meet people from the Internet Services Providers Association when the Bill has already gone through Third Reading. The clause would give the Government the power to alter the way in which they operate without our knowing the position beforehand; there may be Ministers who would be much more draconian and ban every type of promotional activity. If we allow the clause through, we may discover that the Government have got around Parliament.

Kevin Barron: I find it difficult to understand the Opposition's logic. Clearly, the clause is not operable now because we do not know of any potential changes in technology. One or two members of the Committee have suggested that we should include such catch-all provisions, not because of new technology but because some of us—including me—find the technology of the present difficult to grasp.
 The hon. Member for South Dorset mentioned human rights, which operate in respect of any legislation and have no specific relevance to the clause. We will have to consider whether someone could breach the Official Secrets Act 1989 by using the internet and using that as a defence in a court of law. However, that does not mean that we should not introduce a clause such as this one, in an attempt to second-guess new developments in technology that could be used to promote tobacco, which damages the health of the public. It is logical to introduce such a clause; the Government are not attempting to get round Parliament. Perhaps my hon. Friend the Minister could address the matter, but as I understand it, any regulation would have to be debated in Parliament. The clause means that we will not block up parliamentary time bringing statute in on the Floor of the House, and will allow us to deal with the matter through simple regulations.

Ian Bruce: The hon. Gentleman is passionate about the subject, so I am sure that he understands the difference between primary legislation and statutory instruments, which are unamendable and present a yes/no situation. We should deal with such issues on the Floor of the House—especially given that the Government are already discussing with the ISPA about how they may modify the Act even before it has become one.

Kevin Barron: I understand the difference between statute and legislation through statutory instrument. I entered the House in 1983, and saw the use of the statutory instrument grow under the previous Conservative Government. It is a sensible way of creating legislation; debating a clause such as this, which can be operative only when it contains detail, would take time on the Floor of the House. We have many better things to do. Most legislation that is debated in the House contains similar clauses, because the Government want not to get round Parliament but to make government work more sensibly.
 The hon. Member for South Dorset talked about meeting the ISPA. The Government have ongoing meetings with all lobbies and organisations. The ISPA may be able to help to frame regulations within clause 7.

Yvette Cooper: The purpose of the clause is to set a power to amend any provision of the Bill
``in consequence of any developments in technology relating to publishing or distributing by electronic means.'' 
The power has to be set in consequence of developments in technology, not because the Government feel like changing the Bill. It must to be done in response to those developments in technology. The reason why we specify developments in technology around electronic means rather than around tobacco products is that tobacco products are covered by the Bill. If new tobacco products are developed, they will be covered by it. It is true that new products, which are not tobacco products, but cause us concern, are not covered. If they are not tobacco products, they will raise different issues and it would be right to have a separate discussion about them in Parliament; they should not be automatically covered by the clause. 
 It is also right to provide for rapid developments in technology. We all know how fast it is moving and how difficult it is for most of us to keep up with the speed of progress. The clause may allow us to provide new defences, where appropriate, if there are changes in the way in which electronic distribution takes place. It also allows for amendments to ensure that loopholes are not created with new technology around publishing or distributing by electronic means. 
 My hon. Friend the Member for Rother Valley (Mr. Barron) is right: the proposals would have to come before Parliament. They would go through the affirmative procedure and there would be scope for discussion. We should need—and it would be right—to have detailed consultation on the proposals. 
 I am glad that officials are meeting with the ISPA. There has been a great deal of contact with ISPs and we have discussed some issues during the passage of the Bill, such as the enforcement mechanism. We have said that we are keen to talk to the ISPA about how to work together in order to make the mechanism most effective without imposing additional burdens on ISPs. That is sensible. It is good that they are meeting, but we are not aware of any concerns that they have raised that would change the course of the Bill or cause us to amend it further. It is right for the Government to have that power if they are to keep up with the pace of technology. 
 Question put and agreed to. 
 Clause 7 ordered to stand part of the Bill.

Clause 8 - Prohibition of free distributions

Caroline Spelman: I beg to move amendment No. 10, in page 3, line 38, leave out ``a'' and insert'' his''.
 The amendments pertain to the common, historical provision of coupons. I should imagine that several members of the Committee can remember back to their childhood when football cards were issued with cigarettes. They never inspired me to smoke and I doubt that much of the coupon practice has an impact today. It was an historical part of British culture that coupons were issued with cigarettes; many people have valuable collections of football cards. Under the Bill as it is drafted, the issuing of cards will become a practice of the past and the cards themselves museum pieces. The amendments are designed to point out to the Government some of the consequences. 
 Amendment No. 10 has rightly been selected to stand on its own. It is separate from the issue of coupons per se, and relates to legitimate defences and what is or is not reasonable. I have never attended an event at which I witnessed tobacco products or coupons being given away, but I am not a smoker and would probably not have been aware of it. 
 Under the Bill 
 ``A person is guilty of an offence if in the course of a business he— 
 (a) gives any product or coupon away to the public in the United Kingdom, or 
 (b) causes or permits that to happen''. 
My anxiety in trying to change minutely the wording from ``a'' to ``his'' relates to the possibility that a person may attend an event over which he or she has little control and for which he or she has little responsibility. I thought that the proposed wording would be tighter and would make it clear that responsibility lay with the person carrying out the business. If the business or function were, for example, a big sports event, over which the individual found guilty of giving away coupons had no control, it would be difficult to prosecute if his instructions or the agreement on which the business was established contained a clause that made it clear that he could carry out his business at that event. The word ``a'' disconnects the person who will be found guilty of the offence from ownership or responsibility for that business. 
 Although I have never witnessed it, I understand that such products have traditionally been given out at sporting and even charitable events or large social gatherings and university balls. Sometimes students become involved in the distribution of such products as a way of augmenting their income to support themselves at university. Traditionally, it has been done in that way, but of course such a person would have no responsibility for that event and might walk into a bit of a hole if he did not realise that such activity was now illegal. 
 The amendment is a probing amendment designed to make it clear who has responsibility for the business. If the person found guilty of the offence had no responsibility for the business, he might innocently walk into committing an offence without realising what he was doing.

Yvette Cooper: The clause makes it clear that the person who is guilty of committing an offence in the course of a business is someone who gives out any product or coupons to the public or causes or permits that to happen. Such people have defences under clause 8(4) if they did not know, had no reason to suspect or could not have reasonably foreseen that that would be the effect. Appropriate defences are provided for people who were not aware that products or coupons were being distributed at an event that they had organised or were simply attending an event at which products or coupons were being given away. The people involved in giving away the products or coupons—those who had been paid to stand around and hand them out—are involved in the course of a business in giving away a product.
 Under the amendment, the offence would relate to activity in the course not of ``a'' business but of ``his'' business. It would catch the owner of the company but no one else in the chain for devising and commissioning a free distribution to the person making the free distribution. That would unacceptably narrow the scope of the offence. There may be a case in which the owner of a business was overseas, and therefore, beyond United Kingdom jurisdiction. It would be unacceptable if the ban on free distributions did not apply to anyone else involved in the business who distributed free coupons or products and was clearly in breach of the intention behind the Bill. If that person did not own the business and the owner was abroad, we could do nothing to stop the free distribution. That would clearly be wrong and against the intentions of the Bill. 
 The defences are clearly set out and perfectly reasonable. They parallel defences set out earlier in the Bill. The amendment would narrow the scope of the offence too far and would rule out cases that we want to catch under the terms of the Bill.

Caroline Spelman: The Minister's answer was glib, and shows what is wrong with the Bill. Having heard her explanation, I can see that at events such as I have attended, the Bill would not work brilliantly. For example, in corporate entertainment, gifts are often given to those invited. ``His'' and ``her'' presents are wrapped up and placed on the tables. In our household there is usually a problem because my husband gets the bouquet of flowers, perfume or a feminine gift, and I end up with the hip flask—we are a role reversal couple. It is usually assumed that Members of Parliament are men at such events. The gifts are handed out by those taking the coats or waiting on tables—casual labour—who may be students.
 The rates of pay at such events for cloakroom assistants or waitresses are not fantastic. The young person hands out beautifully wrapped gifts, and the first person on the table who opens one ruins the surprise for everyone else, because then we all know what is inside the orange packet. The gift item may be a cigar case or a cigar. Perhaps the organisers think that the gentlemen on the table will want to smoke them after the meal. 
 At the point at which the present is opened, the casual employee suddenly discovers that the gift is a tobacco product, and being well versed in the law on tobacco advertising may become anxious. Should that person collect up the presents again lest they be found guilty of distributing them? The problem is not as easy and glib as the Minister thinks and will cause difficulty in practice. It is reasonable to trace the ultimate responsibility to the owner of the business. The owner may be abroad, as the Minister described, but if he is good at his job he will know what a business should and should not do. He is far more likely than the casual employee to know the minutiae of the Bill. Someone such as a managing director could be expected to be perfectly versed in the offences and defences set out in the Bill. The problem is not as easy as the Minister thinks, but I will not press the amendment.

Ian Bruce: It is normal practice when inviting people to dinner in the course of any business, not only tobacco businesses, that at the end of the meal, someone comes round and asks whether one would like a brandy. At the same time, free cigars are offered. Although it can be argued that the individual is not attempting to promote the tobacco industry generally, he is promoting the smoking of cigars. The first time that the majority of people smoke a cigar is when they are given a free one. I thought that the clause was simply in place to catch the tobacco industry, but it will catch every business man who offers cigars to a group of people around a table.

Caroline Spelman: I am grateful to my hon. Friend. I had not thought of such an example. In those circumstances, business men could be thought of as promoting a tobacco product to their clients. Will the Minister clarify the position? I was about to withdraw the amendment, but I shall hold back from doing so until I have heard what she has to say. Such a serious problem illustrates our difficulty, in that we are talking in practical terms about changing the habits of a lifetime. Hitherto, it has been customary for people, particularly in the business community, to hand out tobacco products. Given that they may not be intimately versed in the details of the Bill, they may need considerable warning about what they may or may not do in respect of corporate entertainment and the provision of tobacco products. Will the Minister give us some guidance on that?

Yvette Cooper: The hon. Member for Meriden cited the example of someone who handed out a wrapped product and did not know what was inside the wrapping. That person clearly has a defence under clause 8(4). A person engaged in one-off helping at an event, even if he or she were paid, would be covered by the phrase ``in the course of a business''. It has a repetitive element to it and would involve an on-going process. However, I shall be happy to return to the matter later in our proceedings.
 The hon. Member for South Dorset referred to the handing out of cigars at the end of a meal or as part of an entertainment. We want to stop the giving away of products or coupons for the purpose of promoting a tobacco product. We want to stop free gifts being handed out for the purpose of promoting tobacco products and encouraging people to buy them. Let us suppose that such a strategy includes making a big fuss about a particular cigar or cigarette; mention is made of how wonderful they are and details are given about where such products can be obtained—such as at the shop down the road for half price. That is a promotion strategy. However, if cigars are handed out at the end of a meal to those who want to smoke them, that process is not about the promotion or sale of tobacco products. 
 The purpose of the clause is clear. It is about stopping the promotion of tobacco products through free distribution, which will be undertaken unless we ensure that it cannot be. We know of many instances of free distribution in pubs, clubs and student union bars; they are about the promotion of tobacco products and trying to persuade students, for example, to smoke particular brands. There was a promotion of tobacco products at Hull university soon after no smoking day. We want to create an offence under the Bill and we are right to do so.

Ian Bruce: The clause is badly worded. We know what the Minister is going for; she is trying to say that it is an offence for a tobacco company to give away free tobacco products or anything to promote them. We understand that that is the purpose of the Bill, but the clause clearly catches someone providing free tobacco at the end of a meal, or indeed during the meal, in the pursuit of his business, to make the guests feel good about him. It may not be part of that individual's business to promote tobacco, but the activity does have the effect of promoting tobacco.
 I ask the Minister to consider the situation of the Commons and Lords pipe and cigar smokers club. We assume that promotional activity within that club, which I think is done by the Tobacco Manufacturers Association will be illegal. The association provides free tobacco. Has the Minister considered the implications to freedom of access to Members of Parliament, and will she undertake to go away and consider that point to ensure that she is not catching people whom she does not intend to catch?

Caroline Spelman: I am glad that we extended this debate a little, and I am grateful to the Minister for saying that she will go away and consider the wording ``in the course of a business'', because we raised genuine concerns. I am still not completely satisfied that the position of the casual employee, who may do waitressing and coat-taking plus distribution of corporate hospitality gifts on a weekly basis, is clear. As I explained, if wrapped gifts started to be distributed, it might be that a certain number of guests start unwrapping them and the employee would at that point realise, ``God forbid, it contains a tobacco product.'' If he is well versed in the law, he has to go to his supervisor and say, ``I'm really sorry, you know. I can't carry on doing what you've asked me to do this evening. I can't do this job and I'll have to pass up my earnings unless you can find me another task, because it's an offence for me to distribute this tobacco product.'' So we are not clear that we are protecting those who need properly to be protected while catching those who need properly to be called to account. The business community needs a warning. It is a very grey area.
 If we asked some cigar lovers how they first started smoking cigars, we just might find people who said, ``I was offered a cigar at a corporate dinner and I didn't think it was the kind of thing I would enjoy smoking, but it has become one of my favourite habits.'' That is not beyond the realms of imagination. As to particular brands, businesses doing corporate entertaining are usually anxious to give guests a top-quality product, so quite possibly the gift would bear the brand name of one of the very best cigars. It remains a very grey area. 
 I said earlier that I would be willing to withdraw the amendment, and I am willing to do so if the Minister is willing to have another look at this. However, we must also keep repeating that, although Labour Members may try to raise themselves up as the champions of public health and put the Opposition down as not being so, that is factually not true. We share exactly the same objective of reducing smoking prevalence in this country, and that has been said on numerous occasions. Our objective is perfectly clear, but we try also to bring a degree of fairness and common sense to the Bill's drafting. It is certainly part of the Opposition's role to protect innocent people who are caught by the definition of an offence under the Bill. I still think that the clause is unclear, but I am willing to withdraw the amendment if the Minister will look again at its wording. 
 12.30 pm

Yvette Cooper: I welcome the hon. Lady's decision to withdraw the amendment. I want to add two quick points of clarification. It is not my understanding that the situations that she has described would be caught by the Bill, but I will look again at the phrasing. However, the wording in her amendment is not acceptable, because it would not allow the foreign owner to be prosecuted or anyone else to be held responsible for what we have described.
 As for the Lords and Commons pipe and cigar smokers club, the idea that anything in the Bill would prevent access to Members of Parliament is nonsense. Any tobacco company can gain access to Members of Parliament, talk to them as much as individual Members will let them, and can make their points as they have always been able to. I was not sure whether the hon. Member for South Dorset was suggesting that there should be a special exemption for hon. Members so that companies could offer them free products and coupons that were not available to other members of the public. That would probably be a little unacceptable.

Kevin Barron: I remind my hon. Friend that the Lords and Commons pipe and cigar smokers club is not an all-party group. [Hon. Members: ``It is!''] It is not; it is denied to most hon. Members. It is a front for the Tobacco Manufacturers' Association, set up to influence legislators.

Yvette Cooper: I was not aware of that. I hope that, if the tobacco companies engage heavily in providing free promotional goods and coupons, that is declared in the Register of Members' Interests, as appropriate. There can be no justification for treating Members of Parliament differently. Clearly, the Government do not want to permit the promotion of tobacco by means of free products and coupons.
 The hon. Member for Meriden said that Conservative Members were just as concerned as the Government are about public health. I accept that many of her amendments have been constructive, and that we have had a helpful discussion on many of the issues. I remind her, however, that the Conservative party voted against Second Reading of the Bill and rejected a ban on tobacco advertising on principle. So to get on her high horse about public health is not appropriate. [Interruption.]

Humfrey Malins: Order. The Committee is becoming just a little too noisy for my taste.

Caroline Spelman: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Caroline Spelman: I beg to move amendment No. 11, in page 3, line 39, after `any', insert `tobacco'.

Humfrey Malins: With this it will be convenient to take the following amendments: No. 12, in page 4, line 15, leave out from `a' to end of line 16 and insert `tobacco product'.
 No. 13, in page 4, line 18, after `making', insert `tobacco'.

Caroline Spelman: The amendments deal with the main body of the subject of coupons, but I cannot let the Minister get away with her last remarks. She knows well how reasoned amendments work on Second Reading and there was an objection in principle to a ban on tobacco advertising. We said at the start of our deliberations that none of the measures would be effective while smuggled tobacco products came in through the floodgates.
 The amendments focus on the coupon system in relation to the supply of tobacco products. They pick up on an issue that was raised legitimately on Second Reading by my hon. Friend the Member for Ryedale (Mr. Greenway) and are designed to warn the Government of the potential adverse consequences of the Bill as it is crafted at the moment. I hope that the Government have thought them through. 
 In our view, tobacco companies that give away products that are not tobacco products or coupons for non-tobacco products should not necessarily be penalised. Many tobacco companies give away coupons to existing customers when they buy tobacco products, which they can then collect and exchange for high-quality items such as limited edition prints, photographs or tobacco accessories. Coupons can be used for silver cigar boxes, which may or may not bear the name of a cigarette or other tobacco product. 
 I related earlier the historical practice of children collecting football coupons. That did not give rise to children smoking tobacco; usually an adult gave the football coupons to children, or sometimes kept them themselves, because cards about successful footballers of the day became desirable to collect. It is not common sense to say that non-smokers, especially children, are encouraged to take up smoking because when they buy a packet of cigarettes they get a coupon for a bone china mug or a set of free wine glasses. That is not realistic. It is not what happens in practice. 
 As my hon. Friend the Member for Ryedale pointed out, the loss of coupons for non-tobacco products will have an impact on the industries that produce those non-tobacco products. It seems to me that the Government have a remarkably deaf ear to manufacturing. That is certainly the view in my constituency in the west midlands. The Government seem to believe that if one cannot make a profit in manufacturing one must get out of it and into something else. However, that is a difficult transition to make if one is a bone china manufacturer in the Potteries. The clause will have an impact on manufacturers of non-tobacco products, which are already suffering significant difficulties.

Kevin Barron: Does the hon. Lady think that the promotion of other products through coupons in cigarette packets should not be covered by the Bill at all?

Caroline Spelman: I question whether the Bill is going too far. It will cover a range of non-tobacco items that do not promote tobacco smoking directly. The motivation for younger people to smoke is that they like to look cool. They give in to peer pressure; everyone is doing it, and they like to have a branded product that looks fashionable. That has nothing whatever to do with collecting a bone china mug.
Mr. Barron rose—

Caroline Spelman: I think that the hon. Gentleman has made his point.
 The purpose of the amendment is to distinguish between coupons for tobacco products and non-tobacco products. 
 Amendments Nos. 12 and 13 would make the distinction between coupons for tobacco products—about which we agree with the Government, although we want to discuss the value of those products later—and other products that have nothing whatever to do with tobacco, which it is unnecessarily draconian to include in the remit of the Bill. 
Mr. Barron indicated dissent.

Caroline Spelman: The hon. Gentleman obviously does not agree. He thinks that it is perfectly acceptable to shut down an outlet for manufacturers' products. He is happy to see that happen. He will make his own speech on the matter if he feels strongly about it.

Kevin Barron: I shall speak against the amendments. I wanted to intervene to say that the coupons that the hon. Lady describes are covered by the voluntary codes. Indeed, there is a lot of restriction on what can and cannot be advertised via coupons. They are a form of direct mail that promotes cigarettes in many homes up and down this country. That is well evidenced by companies having their activities restricted by the appropriate authority. Clearly, the amendments would be a way of circumventing the intention behind the Bill.
 Everyone thinks that such provisions are not well thought out. However, coupons have an important impact, especially in areas where there is a high incidence of smoking. The Committee should consider what the tobacco industry itself says. I have in front of me an analysis of internal documents from the tobacco industry's main UK advertising agencies. Evidence submitted to the Health Committee by CDP, one of the five main advertisers in this country, on the Kensitas club gift scheme included a Gallaher creative brief dated 5 November 1999. It states: 
 ``Who are we talking to: 
 Glasgow's smokers—they smoke because they enjoy it. They also love the gift scheme with over 50 per cent of the Club franchise unemployed this probably explains its popularity.'' 
They deliberately target the high incidence of smokers among poor people in this country. They know that they get people hooked on tobacco and coupons. It is unbelievable that that is not a part of the culture of the homes to which such material is sent. That culture affects not only adults who smoke. Such material lies around for children and everyone else in the household to read.

David Taylor: Does my hon. Friend agree that after hearing today's debate it would be a good idea to announce the formation of a parliamentary group called ``Conservatives for carcinogens''?

Kevin Barron: Perhaps I am not the person to answer that question. As I said on Second Reading, I have always felt that there has been a link between the purveyors of such products and the Conservative party for far too long—an unhealthy link in terms of the public's health. The amendments designed by Opposition Members could easily have been designed by people who use such coupons to promote tobacco in this country, and I hope that the Committee will have none of them.

Ian Bruce: I shall speak later on clause stand part, as I do not want to speak incorrectly to the amendments. However, now is the appropriate time to tell the Minister that I understand where she and the hon. Member for Rother Valley are coming from. Coupons relating to cigarette products are designed to get people hooked on collecting coupons as well as to continue smoking. I have no argument with the Government on that. Those are my bona fides on the matter. However, the clause is, like all the rest of the clauses, incredibly badly worded.
 Under the clause, buying petrol and a pack of 20 cigarettes at a Fina petrol station will make the Fina loyalty card that I have here illegal. That card allows people to save up and receive a token from the promoter of petrol, although that promoter also sells tobacco and no doubt makes a great deal of profit from the tobacco sold through its garages. That coupon can be spent in other shops such as W.H. Smith and Woolworths, among others. The clause will catch such activity. 
 People who go to Tesco to buy their groceries and cigarettes receive a discount coupon that eventually allows them to buy anything. It would be fairly simple for the Government to approach the matter again on a voluntary basis or, perhaps, through legislation to make it clear to such people that a coupon given out under such loyalty schemes could not be used to buy tobacco products. That might be a simple way to deal with the matter. However, under the Bill as it stands, by not specifying tobacco products, we leave such loyalty schemes open to being dealt with in that way. 
 I have an Egg card. If I buy anything on line, I receive a 2 per cent. discount. I could be buying tobacco on line, not that Egg has anything to do with the tobacco industry, but people can receive, for example, 1 per cent. discount on items because they have used their credit card. The catch-all clause will catch ordinary loyalty schemes. I see some extraordinary looks on the faces of the advisers to the hon. Lady. After 1 o'clock, she should have a firm word with them because she has been led down the garden path into doing things that she did not intend to do.

Yvette Cooper: The purpose of the clause is to stop the giving away of products or coupons when the effect of such action is to promote tobacco products. The hon. Member for South Dorset expressed his worry about loyalty cards such as Egg. Such cards are promoting his spending. Companies want him to spend money. If they do not specifically promote tobacco products, they are not covered under the Bill. The Bill will catch the giving away of products or coupons, the purpose or effect of which is to promote a tobacco product.
 The Opposition's amendments would focus the clause on the giving away of tobacco products or coupons that are redeemable for tobacco. A packet of cigarettes may contain a coupon that can be redeemed for petrol, watches or a pop-up toaster. The current Marlboro offer states: 
 ``Just send us three Marlboro Menthol Lights pack tops and we'll send you this lighter—absolutely free!''. 
It is often a standard approach to give away coupons that are redeemable for products other than tobacco. I accept that some coupons are aimed at those who do not smoke because they are available only in packets of cigarettes, but they are clearly an incentive for people to carry on smoking and buying that particular brand. 
 Part of the Bill is aimed at new smokers, young people and those who may not otherwise start smoking. It is aimed also at those who want to give up smoking. We know that 70 per cent. of smokers say that they want to give up. They may be trying to give up, but being bombarded with advertising that provides an incentive for them not to give up. That is why we are worried about the giving away of other products, whatever they may be. If coupons or products—even if they are not tobacco products—provide an incentive to keep smoking and buying tobacco products—it is right that they are covered under the Bill.

Ian Bruce: I direct the Minister's attention to subsection (2), which states:
 ``It does not matter whether the product or coupon accompanies something else, or is given away separately.'' 
Subsection (5) states: 
 ```Coupon' means a document or other thing which (whether by itself or not) can be redeemed for a product or service or for cash or any other benefit.'' 
Such measures clearly catch people who purchase their tobacco products, use a loyalty card and receive a benefit in kind later. For the Minister to say that using a loyalty card is not helping the tobacco industry to promote its products, as all products have been promoted by loyalty cards, ignores the advice that she gave to the Committee about how people use such schemes. What is wrong in a person having 20 extra points on his card as a result of the purchase of a packet of cigarettes if that is not covered by the clause?

Yvette Cooper: The clause makes it perfectly clear. If the purpose or effect is to promote a tobacco product, then it is covered. If something promotes spending on anything at all, then it promotes spending. Our concern is schemes the purpose or effect of which is to promote a tobacco product or to promote smoking. The clause seems to me to be relatively clear. I am happy to take further legal advice on the issue and get it clarified, but I struggle to understand why there should be a problem.
 There is a legitimate issue here that we should be concerned about, which is the promotion of free non-tobacco products to promote tobacco products. That is what the amendments address, and that is what we are right to reject, because it would be wrong to create a loophole that would allow free products or gifts to be used to promote tobacco products, and to narrow the Bill to promotional tobacco products alone. That is why we reject the amendments.

Caroline Spelman: I give credit to my hon. Friend the Member for South Dorset; I had not spotted the potential problem. Loyalty cards could be caught under subsection (5) because ``document or other thing'' is a wide definition. I am pleased that the Minister will have another look at that; it is important that we get it right, since loyalty cards are on the increase, people use them and there is no question but that people do redeem them for, among other things, tobacco products.
 I listened carefully to the Minister, and to make it perfectly clear, of course we are interested in helping those who want to give up smoking. The majority of smokers in some parts of the country—I think that it is as high as 60 per cent.—have tried to give up, and the amendments are in no way intended to undermine their resolve. It is a moot point whether the provision of non-tobacco products really increases smoking prevalence; sometimes there is a limit, quite frankly, to how many bone china mugs or other such products people actually want cluttering up their cupboard. I have never in my life heard anybody say to me or to a fellow smoker, ``Oh, please smoke a few more, because I am trying to get another one of those bone china mugs.'' We have to bring a degree of common sense—

David Taylor: Will the hon. Lady give way?

Caroline Spelman: No, I am not prepared to way to the hon. Gentleman, who rudely described my party as interested in favouring carcinogens. That has not disposed me towards taking interventions that I might otherwise have considered. The hon. Gentleman's comment was outrageous, and he will just have to wait until I feel better about it. It is wrong and quite unnecessary to lower the tone of the Committee in that way.
 In the interests of protecting those who are trying to give up, if there is any question that non-tobacco products make it more difficult to give up, I am prepared to be sympathetic to that argument. That is an important point, but common sense tells me that that is not the way in which smoking appeals to younger children. It is unlikely that a child will get sufficiently organised to fill out the sort of Marlboro coupon that the Minister described, find the stamp and send it off. I know too well from my own children that filling in forms and posting them off usually falls to me. 
 So I do not think that young smokers are drawn in by such activities. However, we are concerned for those who have been smoking for a long time and want to give up. In deference to them, if there is any doubt that such promotions could make it more difficult to give up—although I think that the fundamental addictive quality of the product is the reason why they find it so hard to give up—I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Caroline Spelman: I beg to move amendment No. 37, in page 4, line 16, at end insert—
 `(5A) For the avoidance of doubt a ``coupon'' within the meaning of this section does not include a voucher issued to a customer who has previously bought tobacco products which have been found to be defective or unsatisfactory in some way, where the coupon is issued to the customer by way of compensation to allow him to obtain further products of the same nature.'.

Humfrey Malins: With this, we may take amendment No. 38, in page 4, line 18, leave out `for a nominal sum' and insert
`for a sum less than their market value or, in the case of coupons, the market value of the products for which the coupons can be exchanged'.

Caroline Spelman: The amendments raise two separate issues in relation to coupons for use against the purchase of other tobacco products. There are two dimensions to the amendments. They are probing amendments, designed to make the Government think about some of the consequences of the way in which the clause is drafted. Amendment No. 37 would make it clear that the consumer has a degree of protection for a faulty product. The prohibition of coupons could place at risk the practice of sending out vouchers that are exchangeable for goods after a customer has returned a faulty product. It is not beyond the realms of imagination for a packet of cigarettes to be incomplete, wrongly wrapped, unusable or unpalatable; the consumer might find that they are wet or faulty and wish to return them. As phrased, the clause could deprive a consumer of a perfectly legitimate request. If the Government do not accept the amendment, they must confirm that our interpretation is not correct. At present, the practice takes place and we need to be sure that consumers have a fair degree of protection.
 Amendment No. 38 is designed to probe the Government on the wording ``for a nominal sum''. It is designed to be helpful. Clause 8(6) is vague; the amendment would make it clearer by inserting: 
``for a sum less than their market value or, in the case of coupons, the market value of the products for which the coupons can be exchanged''. 
``Nominal'' suggests ``very small'', whereas the relevant criterion is whether the coupons allow purchase at less than market price. The amendment attempts to pre-empt the possibility of avoidance, by precluding coupons that allow the purchase of a packet of cigarettes for 1p. It is logical, however, to increase the coupon value to allow the purchase of a pack of 200 cigarettes for, say, £10. The Minister will agree that £10 is not a nominal sum. At present, we are concerned that there is a loophole in the vague phrase ``a nominal sum''.

Yvette Cooper: I am sympathetic to the intention behind amendment No. 37, but I feel that it is unnecessary. If the coupon represents full compensation for the faulty goods, it will not be caught by the Bill. Clause 8 deals only with coupons that promote tobacco products and although I am sympathetic to the aim of amendment No. 37, it is unnecessary. Clearly, there is no intention in the Bill—nor any powers—to affect consumers' statutory rights.
 Amendment No. 38 is important and raises concern about the Bill as it is drafted. The problem with the phrase that Conservative Members have used to meet the concept of market value is that the phrase ``less than their market value'' raises difficult questions about how market value is defined. The Bill should not prevent legitimate competition by reducing prices. That would be an unfair restriction. ``Market value'' is probably drawn too tightly and would not allow the ordinary competitive practices within a market. I accept, however, the hon. Lady's concern about the definition of ``nominal sum'' and how to interpret it to include the example that she cited of a product that is dramatically discounted. 
 We are keen to reconsider the issue raised in amendment No. 38 to find a more appropriate wording than ``nominal sum'', although I caution the Committee that there is not necessarily an easy answer that would allow us to encompass all the abuses that cause us concern.

Caroline Spelman: I am encouraged by what the Minister has said. It is on the record that coupons that have the effect of making a product complimentary are not caught by the Bill.

Yvette Cooper: Compensatory.

Caroline Spelman: Yes, compensatory. That helps to clarify the matter, and we do not need to press the amendment to a vote.
 I am delighted to hear that the Minister will reconsider amendment No. 38. Examples in the guidance may help to clarify it. The Minister understands the spirit in which it was tabled and we share the same objective. With that assurance, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Four o'clock.